Tag Archive for: Trademark

Netflix Seeks Cancellation Of “Choose Your Own Adventure” Trademark

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This really should happen more frequently than it does. You will hopefully recall the ongoing drama between Chooseco, the company behind the Choose Your Own Adventure series of books we all remember from the 80s and 90s, and Netflix, producer of the hit series Black Mirror and its recent iteration entitled Bandersnatch. To catch you up, Bandersnatch was an interactive streaming show that billed itself as a “choose your own adventure” show, allowing the viewer to influence the progression of the story via choice. Chooseco sued Netflix over this production, claiming trademark infringement. Chiefly at issue is the appearance of a book mockup in the series, trade dress and marketing surrounding the show, and the fact that a character in the show refers to his own video game creation as a “choose your own adventure” game.

Separately, wielding this trademark, Chooseco inked a lucrative deal with Amazon to develop CYOA stories for the Amazon Alexa (keep this in mind for later). Chooseco also separately went after other indie game developers for using the phrase in their own marketing (again, important for later). And while Netflix sought to have the case tossed on grounds that its use of the phrase and trade dress was protected by the First Amendment, and was not protectable for Chooseco, and that there was no chance of customer confusion. The court, somewhat predictably, decided that those were arguments better made at trial.

And so here we are, with Netflix setting forth those same affirmative defenses… but with one notable addition.

Netflix is asking for the cancellation of Chooseco’s ‘Choose Your Own Adventure’ trademark, as the dispute between the two companies over a “Black Mirror” episode rumbles on.

Netflix, in a new filing at the US District Court for the District of Vermont on Tuesday, February 25, argued that not only has the term “choose your own adventure” become generic (and available under principles of fair usage), but also that characters and storylines from its 2018 interactive episode “Bandersnatch” differs from other interactive productions.

Yup. In addition to the affirmative defenses laid out in its motion for dismissal, Netflix is now asking that Chooseco’s trademark be cancelled entirely. This is going to have a ripple effect across all of the other actions Chooseco has taken as set forth above. Those indie game threats? Those go away if Chooseco doesn’t have a trademark to wield. Future lucrative deals such as that struck with Amazon? Nope, those are gone, too, potentially. By picking this wholly unnecessary fight, Chooseco has potentially given Netflix the ability to yank away the one poker chip it had left to play.

From the filing:

The alleged “Choose Your Own Adventure” marks that are the subject of Registration Nos. 2,913,403; 4,682,357; 5,651,588; 2,807,473; and 3,234,147 lack distinctiveness, are generic, and therefore are unprotectable. As detailed herein, the phrase “Choose Your Own Adventure” no longer denotes a single source or origin. Instead, it is a common phrase used by the general public to refer (a) to any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, or (b) to any interactive fictional work that employs a “branching” narrative style, regardless of the source or origin of the work.

As used in the context of fictional works, the phrase “Choose Your Own Adventure” encompasses the entire genre of interactive-narrative fiction, a genus of media of which Chooseco’s book series is just one species.

Anyone really want to argue that the above isn’t true? It sure seems to be. I have long known what a CYOA book was. I, until covering this story, had zero idea that there was a single company with a registered trademark behind those books. Because, really, there isn’t. CYOA is essentially a genre. And somewhat descriptive. And not particularly identifying as to a source of a product.

There are legions of interactive novels, for instance, that are self-described as CYOA. And, yet, here we are in 2020, the year of our lord, first seeing legal action by Chooseco over it? Come on.

Again, I wish we saw this more often. Trademark bullies looking for a payday should more often have to at least face the risk of losing their trademarks entirely. While there is no guarantee that this will work in Netflix’s favor at trial, at least this threat would deter more bullying in general.

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We’re not hijacking your lion! Midstate firm claws back at Penn State’s trademark infringement lawsuit – PennLive

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We’re not hijacking your lion! Midstate firm claws back at Penn State’s trademark infringement lawsuit  PennLive
“HTTPS hijacking” – read more

Beyond The Taco: Someone Is Now Trying To Trademark ‘Breakfast Burrito’

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This very morning, I paid $ 5 for a breakfast burrito at a place near where I work. To be frank, I regret to say that it was ultimately disappointing. How in the world do you construct a steak breakfast burrito that lacks salt? The great news for me is that there are roughly a gazillion places around me that also advertise breakfast burritos, so I currently have other places to get them. The bad news, however, is that someone out there is taking a run at trademarking “breakfast burrito”, so that might not be the case in the future.

Recently, the Twitter account for Timberlake Law—a North Carolina based specialist in trademarks and copyrights—posted a link to the United States Patent and Trademark Office’s website for an application to trademark the term “Breakfast Burrito.”

Though most people will inherently sense that this seems ridiculous, Timberlake does a good job of spelling out the reason: “While it’s true that the drawing and specimen should match, the mark and the goods shouldn’t,” the tweet explains. To put it another way, the application seeks to trademark the phrase “Breakfast Burrito,” but in the section where the applicant explains what the trademark is for, the answer is “Breakfast burritos; Burritos.” Basically, if the only way you can describe what you’re trying to trademark is by using the same phrase as the trademark, then there’s a solid chance that the phrase is common enough that it can’t be trademarked in the first place. It doesn’t take much legalese to understand that.

Put more simply: a trademark can’t be for the generic name of a product or service. This should be obvious to all, as the point of trademark law is absolutely not to narrowly limit the choices consumers have for a given product or service. Still, this concept seems to elude some people.

The whole thing should remind you of the whole “Taco Tuesday” fiasco that is continuing to date, where Taco John’s somehow got a trademark for a phrase that describes serving people tacos on Tuesdays. In fact, that analogous trademark issue is useful as a marker for how the Trademark Office is complicit in fostering an environment in which people think they can trademark something like “breakfast burrito.”

As to who is actually trying to do so in this case, it’s something of a mystery.

So who exactly wants the rights to eggs wrapped in a tortilla in the morning? Eater attempted to get to the bottom of this application and, unsurprisingly, didn’t get very far. The site “reached out to the person listed on the application,” whose address “matches that of a personal injury law firm in LA,” but “did not hear back on requests for comment made over email and the phone by press time.”

So what’s this all amount to? Likely very little. Anyone with a few hundred bucks can attempt to trademark anything. Receiving a trademark and then protecting it is far more difficult, and based on the assessment of Timberlake and findings of Eater, this attempt to register “Breakfast Burrito” appears to be a random shot in the dark.

A shot that should, and likely will, fail. Still, we have a Taco Tuesday trademark, so how much of a stretch is it to see the USPTO rubberstamping one for “breakfast burrito” as well?

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Chooseco Chooses An Adventure In Bullying Indie Game Devs Over Trademark

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Earlier this year, after Netflix released an iteration of its Black Mirror series entitled Bandersnatch, which allowed the viewer to choose their own story path through the narrative, the company behind the famed Choose Your Own Adventure books from our childhood sued. Chooseco, armed with a trademark registration for “Choose your own adventure”, claimed that Bandersnatch infringed on that trademark, first because the film has a nod of homage to the literary series within the script, and second simply because many in the public compared the film with the books of their youth. Meanwhile, thanks to the renewed attention that Netflix gave CYOA books — for FREE! — , Chooseco inked a deal with Amazon to create CYOA style narratives for the Alexa device.

That success hasn’t stopped Chooseco’s bullying ways, however. Recently, itch.io’s leadership has publicly warned indie game developers to stop describing their games as choose your own adventures on the site after Chooseco issued several takedowns of games that did so. In case you were concerned that the facts before the public didn’t perfectly convey how absurd this all is, never fear:

Itch.io founder Leaf Corcoran told developers about the takedowns this afternoon. “Warning to any devs using the phrase ‘choose your own adventure’ to describe their games, Chooseco is issuing takedown notices,” he wrote on Twitter. Corcoran tells The Verge that the games include Purrfect Apawcalypse, an “apocalyptic dog dating choose your own adventure game”; a “choose your own dating sim text adventure” game called It’s a Date; an unofficial GameBoy game called Choose Your Own Adventure GB; and New Yorker writer Luke Burns’ A Series of Choose Your Own Adventure Stories Where No Matter What You Choose You Are Immediately Killed by a Werewolf, whose plot is self-explanatory.

Clearly, these indie games with mere descriptions in their summaries and/or game titles are a grave threat to the Chooseco empire. After all, what member of the public could possibly stave off confusion over a video game being accurately described as involving a choice in adventure without naturally assuming that this must be from the same company as the books of their childhood?

This is all stupid on many levels. Chooseco’s trademark is at least partially descriptive. I know that’s true, because some of the games that have been the victim’s of this bullying have only used the trademark in their games’…you know…descriptions. That feels about as open and shut an answer as these questions tend to have. Add to that the fact that literature and Amazon Alexa narratives aren’t the same as video games and I would question whether these are even in the same market as Chooseco products. Finally, I would also question whether there is a single iota of potential public confusion to consider here.

And, to be clear, the end result of this bullying thus far is part mockery by other publishers and part simply ignoring Chooseco entirely.

Mainstream publishers have found clever ways to get around the trademark. A Gravity Falls branching-choice book, for example, is billed as a “Select Your Own Choose-Venture” novel. And you can’t officially tag a game as “choose your own adventure” on Itch.io; it’s automatically converted to “interactive fiction.”

Even so, an Itch.io search for “choose your own adventure” still turns up a lot of results. (The common abbreviation “CYOA” also apparently hasn’t triggered any notices.) It’s a widely accepted informal genre name, and Itch.io is a platform that favors offbeat, often free-of-charge games from independent developers.

Your bullying has resulted in mere mockery and dismissive waves. Turn to page 26 if you’d like to go to your room and think about what you’ve done, or turn to page 77 if instead you want to continue to make the world hate you with your bullying.

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